R v Buckskin No. Sccrm-03-142

R v BUCKSKIN
[2003] SASC 285
Court of Criminal Appeal: Bleby, Besanko & Sulan JJ

BLEBY J I agree that the appeal should be dismissed for the reasons given by Besanko J.
BESANKO J: Ms Leanne Buckskin is a twenty-six year old Aboriginal woman. She is a Narungga person. On 9 September 2002 she pleaded not guilty in the District Court to one count of aggravated serious criminal trespass in a place of residence, two counts of common assault, one count of assault occasional actual bodily harm and one count of damaging property. On 7 April 2003, the Director of Public Prosecutions entered a nolle prosequi in relation to one of the counts for common assault, and the defendant pleaded guilty to the other four counts. After hearing submissions as to sentence, a Judge of the District Court on 4 June 2003 decided to fix a single penalty of imprisonment for a period of three years and six months, with a non-parole period of 18 months. The Judge decided not to suspend the defendant’s sentence.
The offences
The offences occurred in the early hours of Sunday 28 April 2002. The defendant and an unidentified male went to a flat in Prospect, and broke into it. The flat was occupied by the two victims, Mr Mike Kamara and Mr Osman Kanneh. The defendant went to the flat to confront Mr Kanneh. On forcing their way into the flat, the defendant and her accomplice confronted Mr Kanneh in his bedroom. The defendant had a knife, and she used the knife to threaten Mr Kanneh. Mr Kanneh was slapped and punched in the face and to the left side of his head. His nose and lip/mouth were bleeding. At that point, Mr Kamara intervened and forced the defendant’s accomplice and then the defendant out of Mr Kanneh’s bedroom.
Mr Kamara then tried to calm the defendant. She would not be calmed and in fact she bit Mr Kamara’s left forearm, and with a knife in her right hand attempted to slash at his stomach. The defendant lunged at Mr Kamara with the knife on two occasions. Mr Kamara managed to knock the knife to the ground. The defendant’s accomplice intervened and Mr Kamara was forced to the ground. Thereafter, the defendant and her accomplice kicked and punched and scratched Mr Kamara for what seems to be a period of some minutes. Mr Kamara suffered injuries to his forearm, face, left side of his neck, right eye and the back of his neck.
The defendant then damaged various items in the flat.
The sentencing Judge was told that the defendant had gone to the flat to confront Mr Kanneh because he had been repeatedly importuning one of the defendant’s close friends, a woman named Ms Tamara Edwards. This conduct by Mr Kanneh occurred while Ms Edwards was staying at the defendant’s house. The sentencing Judge was told that after Ms Tamara Edwards had left the defendant’s house, Mr Kanneh began importuning the defendant. In his reasons the sentencing Judge referred to the fact that the defendant confronted Mr Kanneh because he was importuning Ms Edwards, but not to the fact that he was importuning the defendant. The sentencing Judge was told that the defendant regarded Ms Edwards as being mentally weak and vulnerable to exploitation by men. The defendant had a poor impression of Mr Kanneh and felt the need to protect Ms Edwards from him. The sentencing Judge was told that the defendant was significantly affected by alcohol at the time of the attack.
The sentencing Judge noted the impact of the attack upon the two victims. He also noted the property damage caused to them. He noted an offer by the defendant to compensate the two victims.
The defendant’s personal circumstances
The sentencing Judge was told that the defendant was in a relationship with a male, who was released from gaol on parole on 21 May 2003. The sentencing Judge was told that the defendant’s partner had overcome his drug habit, obtained an education and learned a trade. The defendant has two children aged six and three.
The defendant’s family originates from Point Pearce. During her formative years, the family moved frequently throughout the State, and as a result, the defendant had a disrupted education. The defendant is literate and recently enrolled in a course at a TAFE college.
For a time, the defendant and her family lived at Yalata. Her sisters, Monica and Pamela, were subject to violence from their respective partners during that time. In addition, the defendant’s sister, Monica, suffered a serious illness that resulted in her becoming a paraplegic. This has placed a burden on the defendant’s family and on the defendant in terms of caring for Monica and her child. The sentencing Judge was told that due to the position of the defendant’s father within the community at Point Pearce, the family was ostracised, intimidated and threatened. The defendant has used drugs, but at the time she was sentenced she was no longer dependent upon drugs. The defendant has attempted to overcome her habit of binge drinking.
As to previous offending, the sentencing Judge made the following remarks:
“You have a long history of offending, although much of it occurred whilst you were a juvenile. You have committed numerous offences of a similar nature to the charges for which you are now being sentenced, including numerous charges of assault. Of particular relevance is your previous conviction in this Court in 1996 for unlawful wounding and carrying an offensive weapon; once again, a knife. On that occasion you received a suspended sentence and a bond to be of good behaviour for two years. You were warned at that time that if you continued to offend, then a period of imprisonment would be inevitable. You failed to heed that warning.”
The sentencing Judge noted the matters advanced in favour of a suspended sentence including the defendant’s unfortunate history, her attempts to rehabilitate herself, her apology to Mr Kamara, and her roles in the united family in caring for her children and for other family members. The sentencing Judge noted that these were all relevant matters. However, he was not satisfied that they ought to prevail over the needs of general deterrence, and in the defendant’s case, personal deterrence. He noted that the defendant had previously had the benefit of a suspended sentence and yet her present offending had been of an even worse nature and once again had involved the use of a knife.
In fixing a non-parole period of 18 months, the sentencing Judge took into account the defendant’s responsibilities to her immediate family and to other family members.
The Grounds of Appeal
The defendant appeals to this Court pursuant to leave granted on 21 July 2003.
There are three grounds of appeal. They are as follows:
“1.     That the learned sentencing Judge erred in that:
1.1    He failed to take into account that the victim Kanneh had importuned the defendant herself, by phoning on numerous occasions as well as importuning Ms Tamara Edwards.
1.2    He declined to exercise his discretion to suspend the sentence of imprisonment.
1.3    The applicant seeks leave to introduce fresh evidence particulars of which are contained in the affidavit of Christopher Jay Charles sworn on 11^th July 2003.”
It is convenient at this point to identify the nature of the fresh evidence upon which the defendant seeks to rely. The affidavit of Mr Charles sworn on 11 July 2003 raises what are said to be two matters which have arisen since the defendant was sentenced. First, in July 2003 the defendant learnt that she was pregnant. The defendant’s previous pregnancies have been difficult and both of her children were delivered by caesarean section. Secondly, the health of the defendant’s sister, Monica, has deteriorated and since the defendant was taken into custody it has been confirmed that the defendant’s sister is a quadriplegic. Since leave was granted, the defendant has filed a second affidavit. It is an affidavit of Mr Charles sworn on 30 July 2003. The defendant is pregnant and her estimated date of conception is 3 June 2003. She is due to give birth on 25 February 2004. The defendant was informed of her pregnancy on 30 June 2003.
The defendant’s sister, Monica, is an incomplete quadriplegic with some power in her arms. Monica is unable to mobilise and is completely dependent on others for her activities of daily living.
I turn now to deal with each ground of appeal.
With respect to the first ground of appeal, counsel for the defendant submitted to the sentencing Judge that the defendant had gone to the flat to confront Mr Kanneh about him importuning not only Ms Edwards but also the defendant. Counsel for the Director said that that was the first time he had heard any details of the background to the offences, and that he was simply not in a position to comment one way or another on the defendant’s assertions. As I have said, the sentencing Judge made no reference to the assertion that Mr Kanneh had importuned the defendant.
For reasons it is unnecessary to detail, the Director of Public Prosecutions accepted that the sentencing Judge was not entitled to reject the assertion that Mr Kanneh had importuned the defendant without giving her notice that he might do so. The sentencing Judge did not mention the assertion. It seems to me that he either rejected it, overlooked it or did not consider it material. If it is a material fact, the sentencing Judge erred if he rejected it or overlooked it. I do not think that it is a material fact. The defendant went to the flat in the early hours of the morning with the accomplice and a knife. She forcibly entered the premises. The main attack was unprovoked and on a person she did not know. The attack lasted for some time during which the defendant lunged at Mr Kamara with a knife and he was kicked, punched and scratched.
As to the second ground of appeal, I think it was within the discretion of the sentencing Judge not to suspend the sentence. The Judge took into account the defendant’s history, including her life at Point Pearce and the violence to which those around her had been subjected. At the same time he took into account the seriousness of the offence and the defendant’s past history of offending. He was entitled to reach the conclusion that it was not appropriate to suspend the sentence and no error in his approach has been shown.
As to the third ground of appeal, there are two aspects to the fresh evidence upon which the defendant seeks to rely. The first is the deterioration in the tragic condition of her sister, Monica. I am not satisfied that that evidence should be received. On the evidence before the Court, it is not clear precisely when Monica’s condition deteriorated and therefore it is not clear when, with reasonable diligence, the evidence could have been obtained. Furthermore, the sentencing Judge took into account Monica’s condition as a paraplegic and, although the evidence before him was very general, the obligations that her condition imposed on the defendant and her family. There is no evidence before this Court about the nature of any increased obligation on the defendant as a result of a realisation that Monica’s condition is worse than previously thought.
The second aspect of the fresh evidence is the defendant’s pregnancy and the difficulties she has experienced with her previous pregnancies. The evidence relates to facts which existed when the sentence was passed but which were not known to the sentencing Judge. There is an adequate explanation for the failure to put the evidence before the sentencing Judge. The defendant’s pregnancy is a relevant matter. In those circumstances evidence of the defendant’s pregnancy should be received (R v Smith (1987) 44 SASR 587 per King CJ at 588; R v Brain (1999) 74 SASR 92 per Doyle CJ at 104 – 105). However, the evidence does not persuade me that the sentence imposed by the sentencing Judge was wrong. In my opinion, there is no evidence that the defendant’s pregnancy cannot be managed while she is in custody or that there would be grave damage to the health of the defendant or the baby if the baby is born in custody and remains there for a short time after birth. The defendant’s pregnancy is insufficient to affect the principles of law otherwise applicable to the sentencing of the defendant (R v O’Dea [2002] NSWCCA 91).
The sentence imposed by the sentencing Judge and his refusal to suspend the sentence were within the range of appropriate sentences. Even if the defendant had made good the error alleged in ground one, I would, in re-sentencing the defendant, have imposed the same sentence.
Conclusion
The appeal should be dismissed.
SULAN J I agree with the reasons of Besanko J. I agree that the appeal should be dismissed.

[2003] SASC 285

22 August 2003